Citation Nr: 9833190
Decision Date: 11/09/98 Archive Date: 11/17/98
DOCKET NO. 97-26 196 ) DATE
)
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On appeal from the Department of Veterans Affairs (VA)
Medical and Regional Office (RO) Center in Wichita, Kansas
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for
residuals of a shell fragment wound to the left leg,
involving Muscle Group XI.
2. Entitlement to an evaluation in excess of 10 percent for
residuals of a shell fragment wound to the left thigh,
involving Muscle Group XIII.
3. Entitlement to an evaluation in excess of 30 percent for
residuals of a shell fragment wound to the right leg.
4. Entitlement to an evaluation in excess of 10 percent for
residuals of a shell fragment wound to the right arm,
involving Muscle Group VII.
5. Entitlement to an evaluation in excess of 10 percent
prior to September 5, 1997, for mixed polyneuropathy of the
left foot and the right foot.
6. Entitlement to an evaluation in excess of 20 percent from
September 5, 1997, for mixed polyneuropathy of the left foot.
7. Entitlement to an evaluation in excess of 20 percent from
September 5, 1997, for mixed polyneuropathy of the right
foot.
8. Entitlement to service connection for an acquired
psychiatric disorder.
9. Entitlement to service connection for a right hip
disorder.
10. Entitlement to service connection for a back disorder.
11. Entitlement to service connection for a left shoulder
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
David T. Cherry, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1967 to
September 1970.
In an April 1997 rating decision, service connection was
granted for a disorder manifested by bilateral foot pain, and
a 10 percent disability rating by analogy under Diagnostic
Code 5979 (anterior metatarsalgia) was assigned. In May
1997, the veteran filed a notice of disagreement with the
assignment of the 10 percent disability rating and the issue
was properly appealed. In the January 1998 supplemental
statement of the case, separate 20 percent disability ratings
for mixed polyneuropathy of both the left foot and the right
foot were assigned, both effective September 5, 1997.
Moreover, in the veteran’s December 1996 claim, he raised the
issue of entitlement to a compensable evaluation for
residuals of a shell fragment wound to the right thigh,
involving Muscle Group XIII. That issue was not adjudicated
in the April 1997 rating decision and was not listed as an
issue in the June 1997 statement of the case. In the January
1998 supplemental statement of the case, that issue was
adjudicated and a 10 percent disability rating was assigned
for residuals of a shell fragment wound to the right thigh,
involving Muscle Group XIII, effective September 5, 1997.
Even though the RO certified the issue for appeal, the
veteran had not filed a notice of disagreement on that issue
when the claims folder was transferred to the Board of
Veterans' Appeals (Board). That issue is not in appellate
status. See 38 C.F.R. § 20.200 (1998).
In his December 1996 claim, the veteran raised the issue of
entitlement to service connection for disorder manifested by
swelling of the legs. At the September 1997 hearing held at
the RO before a hearing officer, the veteran appeared to
raise the issue of entitlement to service connection for a
bilateral knee disorder as secondary to the residuals of the
shell fragment wounds. Hearing Transcript (T.) 3. These
issues are referred to the RO for appropriate action.
The issue of an increased evaluation for residuals of a shell
fragment wound to the right arm will be addressed in the
remand portion of the decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that higher evaluations are warranted
for residuals of shell fragment wounds of the right leg, left
leg, and left thigh. He also argues that higher evaluations
are warranted for the bilateral mixed polyneuropathy of the
feet because he has a burning sensation and tingling in both
feet. The veteran contends that service connection for PTSD
is warranted because he has dreams about his service in
Vietnam. He also argues that his back disorder and right hip
disorder are related to the residuals of the various shell
fragment wounds. The veteran asserts that he has a left
shoulder disorder as a result of using a cane for his various
shell fragment wounds.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an evaluation in excess of 20 percent for
residuals of a shell fragment wound to left leg, involving
Muscle Group XI, and that the preponderance of the evidence
is against an evaluation in excess of 10 percent for
residuals of a shell fragment wound to the left thigh,
involving Muscle Group XIII. It is also the decision of the
Board that the preponderance of the evidence is against an
evaluation in excess of 30 percent for residuals of a shell
fragment wound to the right leg. It is also the decision of
the Board that the evidence supports a separate evaluation of
20 percent prior to September 5, 1997, for mixed
polyneuropathy of the left foot and a separate evaluation of
20 percent prior to September 5, 1997, for mixed
polyneuropathy of the right foot. It is also the decision of
the Board that the preponderance of the evidence is against
an evaluation in excess of 20 percent from September 5, 1997,
for mixed polyneuropathy of the left foot and that the
preponderance of the evidence is against an evaluation in
excess of 20 percent from September 5, 1997, for mixed
polyneuropathy of the right foot. It is also the decision of
the Board that the veteran has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that his claims for service
connection for post-traumatic stress disorder, a right hip
disorder, a back disorder, and a left shoulder disorder are
well grounded.
FINDINGS OF FACT
1. The residuals of a shell fragment wound to the left leg
are manifested by no more than a moderately severe impairment
of Muscle Group XI.
2. The residuals of a shell fragment wound to the left thigh
are manifested by no more than a moderate impairment of
Muscle Group XIII.
3. The residuals of a shell fragment wound to the right leg
are manifested by a severe impairment of Muscle Group XI.
4. The mixed polyneuropathy of the left foot, both before
and from September 27, 1997, is manifested by no more than a
severe incomplete paralysis of the left musculocutaneous
nerve.
5. The mixed polyneuropathy of the right foot, both before
and from September 27, 1997, is manifested by no more than a
severe incomplete paralysis of the right musculocutaneous
nerve.
6. There is no competent medical evidence showing a current
diagnosis of PTSD.
7. There is no competent evidence which links a right hip
disorder to the veteran’s service-connected residuals of
various shell fragment wounds.
8. There is no competent evidence which links a back
disorder to the veteran’s service-connected residuals of
various shell fragment wounds.
9. There is no competent evidence that the veteran currently
has a left shoulder disorder.
CONCLUSIONS OF LAW
1. A rating in excess of 20 percent for residuals of a shell
fragment wound to left leg, involving Muscle Group XI is not
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321, 4.56, 4.73, Diagnostic Code 5311 (1998); 38 C.F.R.
§§ 4.56, 4.73, Diagnostic Code 5311 (1996).
2. A rating in excess of 10 percent for residuals of a shell
fragment wound to the left thigh, involving Muscle Group XIII
is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321, 4.56, 4.73, Diagnostic Code 5313 (1998);
38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5313 (1996).
3. A rating in excess of 30 percent for residuals of a shell
fragment wound to the right leg is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321,
4.56, 4.73, Diagnostic Code 5311 (1998); 38 C.F.R. §§ 4.56,
4.73, Diagnostic Code 5311 (1996).
4. A separate rating of 20 percent prior to September 5,
1997, for mixed polyneuropathy of the left foot is warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321,
4.14, 4.25, 4.124a, Diagnostic Code 8522 (1998).
5. A separate rating of 20 percent prior to September 5,
1997, for mixed polyneuropathy of the right foot is
warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321, 4.14, 4.25, 4.124a, Diagnostic Code 8522 (1998).
6. A rating in excess of 20 percent from September 5, 1997,
for mixed polyneuropathy of the left foot is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321,
4.124a, Diagnostic Code 8522 (1998).
7. A rating in excess of 20 percent from September 5, 1997,
for mixed polyneuropathy of the right foot is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321,
4.124a, Diagnostic Code 8522 (1998).
8. The veteran's claim of service connection for post-
traumatic stress disorder is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991); 38 C.F.R. § 3.304(f) (1998).
9. The veteran's claim of service connection for a right hip
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.310 (1998).
10. The veteran's claim of service connection for a back
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.310 (1998).
11. The veteran's claim of service connection for a left
shoulder disorder is not well grounded. 38 U.S.C.A. §
5107(a) (West 1991); 38 C.F.R. § 3.310 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question is whether the veteran has presented
evidence of well-grounded claims. The United States Court of
Veterans Appeals (Court) has defined a well-grounded claim as
a claim that is plausible. In other words, a well-grounded
claim is meritorious on its own or capable of substantiation.
If the claim is not well grounded, the appeal must fail.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78,
81 (1990). If the veteran has not submitted evidence of a
well-grounded claim, there is no duty to assist him in
developing facts pertinent to the claim. 38 U.S.C.A.
§ 5107(a).
Initially, in view of the evidence of record, including the
veteran's evidentiary assertions that must be presumed to be
true for purposes of determining whether his claims are well
grounded, the Board finds that his claims for increased
ratings for residuals of shell fragment wounds to the left
leg, left thigh, and right leg and for mixed polyneuropathy
of the left foot and the right foot are plausible and thus
well grounded within the meaning of 38 U.S.C.A. § 5107 (West
1991). King v. Brown, 5 Vet. App. 19 (1993). The Board also
finds that all relevant evidence has been obtained and that
the duty to assist the claimant is satisfied.
I. Factual Background on the Issues of Increased Ratings for
Residuals of Shell Fragment Wounds to Left Leg, Left Thigh,
and Right Leg
Service medical records reveal that in July 1970 the veteran
had multiple fragment wounds in both lower extremities. He
was hospitalized from July 1970 to September 1970.
On July 1971 VA examination, there were multiple scars on the
left posterior thigh that were one to two inches in length.
The scars were well healed and attached to the deep
musculature of the posterior thigh. There was a long scar on
the medial aspect that extended for about eight inches above
the medial malleolus. It was well healed and attached to the
bone. There was no evidence of inflammatory changes. On the
right leg, there was a long scar in the lateral aspect of the
leg that extended from the lateral malleolus upward. It was
about half an inch in width and well healed. Also, there
were two ten-inch scars that extended from the lateral
malleolus and over the Achilles tendon. Those scars were
approximately half an inch in width and were attached to the
fascia of the leg. The diagnoses were residuals of multiple
fragment wounds of the right arm, the right and left thigh,
and the right and left leg.
In a January 1972 rating decision, service connection was
granted for, inter alia, residuals of shell fragment wounds
to the left leg, left thigh, and right leg. A 10 percent
disability rating was assigned for residuals of a shell
fragment wound to the left leg under Diagnostic Code 5311
(injury to Muscle Group XI). A 10 percent disability rating
was assigned for residuals of a shell fragment wound to the
left thigh under Diagnostic Code 5313 (injury to Muscle Group
XIII). A 20 percent disability rating was assigned for
residuals of a shell fragment wound to the right leg under
Diagnostic Code 5312 (injury to Muscle Group XII).
On September 1975 VA examination, the diagnoses were, inter
alia, the following: a shell fragment wound in the left thigh
involving Muscle Group XIII, a shell fragment wound in the
left leg involving Muscle Group XI, and a shell fragment
wound in the right leg involving Muscle Group XI.
On February 1997 VA bone examination, there was no history of
any fractures of any bones. It was noted, however, that
there were some secondary results of the shell fragment
wounds.
On February 1997 VA hip examination, the veteran had a mild
limitation of motion in both hips. X-rays of the hips
revealed that there were tiny metallic foreign objects in the
thighs and that the bones showed no evidence of fractures or
destruction. The diagnosis was mild degenerative arthritis.
Nevertheless, it was noted that there was no relationship
between any hip disease and the shell fragment wounds.
On February 1997 VA joints examination, there was no evidence
of swelling or deformity in the knees. The veteran could
squat only halfway and with difficulty. The range of motion
in both knees was flexion to 90 degrees and extension to 180
degrees. There was no lateral instability, and the drawer
sign was negative. No crepitus was found, but there was some
pain from rotating the tibia on the knee joint. X-rays of
the knees revealed that there were small metallic foreign
bodies in the soft tissues of the knees and that the bones
were within normal limits. It was noted that the symptoms in
the knees were secondary to the shell fragment wounds.
On February 1997 VA muscles examination, it was noted that
the scars were in the following areas and muscle groups: left
thigh, Muscle Group XIII; left lower leg, Muscle Group XI;
and right lower leg, Muscle Group XI. There was some mild
tissue loss in different areas. There was muscle
penetration. There were numerous scars, including scars from
the shell fragment wounds and scars from the surgeries for
removal of the shrapnel. There was no evidence of adhesions.
There was no damage to the tendons. There was no damage to
bones, joints, or nerves from the original injury. It was
noted, however, that there may be some damage to the bones,
joints, or nerves that have developed over the years. There
was considerable loss of strength in both lower legs. There
was evidence of pain. The veteran walked with a cane, and
his gait was shuffling. There was no evidence of muscle
hernia. X-rays of the femurs revealed that there were small
metallic foreign objects in the soft tissues and that the
bones were within normal limits. X-rays of the tibias and
fibulas revealed that small metallic bodies were present and
that the bones were within normal limits. X-rays of the
ankles revealed that small metallic bodies were present. The
diagnosis was numerous shrapnel wounds to both lower and
upper legs along with the right elbow that were considerably
symptomatic. It was also noted that the veteran worked with
heavy equipment and that now he had difficulty with his job
and would probably have to quit his job.
In an April 1997 rating decision, a 30 percent disability
rating for residuals of a shell fragment wound to the right
leg was assigned. Also, a 20 percent disability rating for
residuals of a shell fragment wound to the left leg,
involving Muscle Group XI, was assigned.
In August 1997, the veteran reported that in the middle of
July 1997 he was unable to continue working.
On September 1997 VA general medical examination, it was
noted that post-traumatic scars, which were residuals of the
shell fragment wounds, were well healed and were not causing
any major disfigurement.
On September 1997 VA muscles examination, there was no
evidence of tissue loss present in the area of scar formation
and previous injury. There was no evidence of muscle
penetration. The scars in the lower extremities were not
tender or sensitive. No adhesions were detected. Except for
a split iliotibial band on the left side, there was no damage
to the tendons. In particular, there was evidence of a soft
tissue herniation between the split band, but no muscle
herniation was present. There was no evidence of damage to
bones or joints. The motor strength was 4.5/5 in all motor
groups of the lower extremities, which was considered mild.
The examiner noted that it was unclear whether the decrease
in strength was related to pain during the examination or to
true motor weakness. The veteran experienced some mild to
moderate pain in the lower extremities, mainly over the areas
of old injury. There was no evidence of muscle hernia in any
of the muscle groups. The diagnosis was post-traumatic shell
fragment wounds to the lower extremities resulting in
moderate pain and weakness. The examiner concluded that the
residuals were a moderate disability.
At the September 1997 hearing, the veteran testified that he
had pain in both legs. T. 1-2.
In a January 1998 rating decision, a total rating based on
individual unemployability was granted, effective August 8,
1997.
II. Legal Background on the Issues of Increased Ratings for
Residuals
of Shell Fragment Wounds to Left Leg, Left Thigh, and Right
Leg
Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. Part 4 (1998).
Muscle Group XI involves the posterior and lateral crural
muscles and the muscles of the calf. The functions include
propulsion, plantar flexion of the foot, stabilization of the
arch, and flexion of the toes and knee. The disability
ratings for moderate, moderately severe, and severe MG XI
disabilities are 10, 20, and 30 percent, respectively. See
38 C.F.R. § 4.73, Diagnostic Code 5311 (1998); 38 C.F.R.
§ 4.73, Diagnostic Code 5311 (1996) (38 C.F.R. § 4.73 was
amended on July 3, 1997, but with no substantive changes in
the language with regard to the ratings assigned for
moderate, moderately severe, and severe injuries to MG XI).
Muscle Group XII involves the anterior muscles of the legs
whose functions include dorsiflexion, extension of the toes,
and stabilization of the arch. The disability ratings for
moderate, moderately severe, and severe MG XII disabilities
are 10, 20, and 30 percent, respectively. See 38 C.F.R.
§ 4.73, Diagnostic Code 5312 (1998); 38 C.F.R. § 4.73,
Diagnostic Code 5312 (1996) (38 C.F.R. § 4.73 was amended on
July 3, 1997, but with no substantive changes in the language
with regard to the ratings assigned for moderate, moderately
severe, and severe injuries to MG XII).
Muscle Group XIII involves the anterior thigh group and the
hamstring complex of 2-joint muscles. The functions include
extension of the hip and flexion of the knee. The disability
ratings for moderate, moderately severe, and severe MG XIII
disabilities are 10, 30, and 40 percent, respectively. See
38 C.F.R. § 4.73, Diagnostic Code 5313 (1998); 38 C.F.R.
§ 4.73, Diagnostic Code 5313 (1996) (38 C.F.R. § 4.73 was
amended on July 3, 1997, but with no substantive changes in
the language with regard to the ratings assigned for
moderate, moderately severe, and severe injuries to MG XIII).
Prior to July 3, 1997, a moderate disability of the muscles
consists of a through and through or deep penetrating wound
of relatively short track by a single bullet or small shell
or shrapnel fragment. Objective findings of a moderate
disability of the muscle are the following: linear or
relatively small entrance and (if present) exit scars so
situated as to indicate a relatively short track of the
missile through muscle tissue; signs of moderate loss of deep
fascia or muscle substance or impairment of muscle tonus; and
definite weakness or fatigue in comparative tests. 38 C.F.R.
§ 4.56(b) (1996).
Prior to July 3, 1997, a moderately severe disability is
presented by evidence of a through and through or deep
penetrating wound by a high velocity missile of small size,
or a large missile of low velocity, with debridement or with
prolonged infection or with sloughing of soft parts, and with
intramuscular cicatrization. Objective findings of a
moderately severe wound include the following: relatively
large entrance and (if present) exit scars so situated as to
indicate the track of the missile through important muscle
groups; indications on palpation of moderate loss of deep
fascia, moderate loss of muscle substance, or moderate loss
of normal firm resistance of muscles in comparison to the
sound side; and tests of strength and endurance of muscle
groups involved in comparison to the sound side give positive
evidence of marked or moderately severe loss. 38 C.F.R. §
4.56(c) (1996).
Prior to July 3, 1997, severe muscle disability consists of
through and through or deep penetrating wounds due to a high-
velocity missile or to large or multiple low-velocity
missiles, or a shattering bone fracture; with extensive
debridement, prolonged infection, or sloughing of soft parts;
intermuscular binding; and cicatrization. The history of the
injury should be similar to moderately severe muscle injury,
but in an aggravated form. Objective findings should include
extensive ragged, depressed and adherent scars so situated as
to indicate wide damage to the muscle groups in the track of
the missile. X-rays may show retained metallic foreign
bodies, and palpation should show moderate or extensive loss
of deep fascia or muscle substance, with soft or flabby
muscles in the wound area. Adaptive contraction of an
opposing group of muscles, if present, indicates severity, as
does adhesion of a scar to one of the long bones, scapula,
pelvic bones, sacrum or vertebrae, in an area where the bone
is normally protected by muscle.
38 C.F.R. § 4.56(d) (1996).
The VA Schedule for Rating Disabilities for muscle injuries
had been revised, effective July 3, 1997. See 62 Fed. Reg.
30,235 (1997). Under the new rating schedule, objective
findings of a moderate disability include (1) some loss of
deep fascia or muscle substance, or some impairment of muscle
tonus; and (2) loss of power or lowered threshold of fatigue
when compared to the sound side. See 38 C.F.R. § 4.56
(1998). Moreover, objective findings of a moderately severe
disability include the following: entrance and (if present)
exit scars which indicated the track of a missile through one
or more muscle groups; indications on palpation of loss of
deep fascia, muscle substance, or normal firm resistance of
muscles in comparison to the sound side; and tests of
strength and endurance in comparison to the sound side
demonstrate positive evidence of impairment. See Id.
Furthermore, objective findings of a severe disability
include the following: ragged, depressed, and adherent scars
that indicate wide damage to the muscle groups in the missile
track; palpation shows loss of deep fascia or muscle
substance, or soft flabby muscles in the wound area; muscles
swell and harden abnormally in contraction; and tests of
strength, endurance, or coordinated movements in comparison
to the corresponding muscles of the uninjured side indicate
severe impairment of function.
If present, the following are also signs of severe muscle
disability: (1) x-ray evidence of minute multiple scattered
foreign bodies indicating intermuscular trauma and explosive
effect of the missile; (2) adhesion of a scar to one of the
long bones, scapula, pelvic bones, sacrum, or vertebrae, with
epithelial sealing over the bone rather than true skin
covering in an area where the bone is normally protected by
muscle; (3) diminished muscle excitability to pulsed
electrical current in electrodiagnostic tests; (4) visible or
measurable atrophy; (5) adaptive contraction of an opposing
group of muscles; (6) atrophy of muscle groups not in the
tract of the missile, particularly of the trapezius and
serratus in wounds of the shoulder girdle; and (7) induration
or atrophy of an entire muscle following simple piercing by a
projectile. See Id.
The Court has held that where the law or regulation changes
after the claim has been filed, but before the administrative
or judicial process has been concluded, the version more
favorable to the veteran applies unless Congress provided
otherwise or permitted the VA Secretary to do otherwise and
the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308
(1991).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability such doubt will be resolved in favor of
the claimant. 38 C.F.R. § 4.3 (1998). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (1998).
III. Analysis of the Issue of an Increased Rating
for Residuals of a Shell Fragment Wound to the Left Leg
For this claim, there is no persuasive evidence that the
veteran has a severe injury in the left leg to MG XI under
either criteria. On the one hand, on February 1997 VA
muscles examination, it was noted that there was a
considerable loss of strength in both lower legs. On the
other hand, on September 1997 VA muscles examination, the
motor strength was 4.5/5 in all motor groups in the lower
extremities, which was considered to be mild. No adhesions
were detected, and there was no evidence of muscle
herniation. In addition, the September 1997 VA examiner
concluded that the veteran’s muscle injuries were only
moderate. In light of these findings, especially the
September 1997 examiner’s opinion, the preponderance of the
evidence is against a finding that there is a severe injury
to MG XI in the left leg.
Furthermore, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The residuals of a shell fragment wound to the
left leg have not resulted in frequent hospitalizations, but
have interfered with his employment. Nevertheless, the
interference in employment is not beyond the average
impairment of earning capacity contemplated by the 20 percent
rating currently assigned.
IV. Analysis of the Issue of an Increased Rating
for Residuals of a Shell Fragment Wound to the Left Thigh
For this claim, there is no persuasive evidence that the
veteran has a moderately severe injury in the left thigh to
MG XIII under either criteria. On the one hand, on September
1997 VA muscles examination, there was damage to the tendons
in the left thigh. In particular, there was a split
iliotibial band on the left thigh with soft tissue herniation
between the split band. On the other hand, there was no
evidence of muscle herniation. No adhesions were detected.
The motor strength was 4.5/5 in all motor groups in the lower
extremities, which was considered to be mild. In addition,
the September 1997 VA examiner concluded that the veteran’s
muscle injuries were only moderate. In light of these
findings, especially the September 1997 examiner’s opinion,
the preponderance of the evidence is against a finding that
there is a moderately severe injury to MG XIII in the left
leg.
Moreover, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The residuals of a shell fragment wound to the
left thigh have not resulted in frequent hospitalizations,
but have interfered with his employment. Nonetheless, the
interference in employment is not beyond the average
impairment of earning capacity contemplated by the 10 percent
rating currently assigned.
V. Analysis of the Issue of an Increased Rating
for Residuals of a Shell Fragment Wound to the Right Leg
Beginning in the January 1972 rating decision, the RO rated,
and has continued to rate, the residuals of a shell fragment
wound to the right leg under the diagnostic code for an
injury to Muscle Group XII. At the time of the January 1972
rating decision, the veteran had only undergone one VA
examination and that the specific muscle groups that were
involved were not identified in that examination. On
September 1975 and February 1997 VA examinations, it was
specifically noted that residuals of a shell fragment wound
to the right leg involved Muscle Group XI. There was also no
indication that Muscle Group XII was also involved. There is
no persuasive evidence that the residuals of a shell fragment
wound to the right leg include injuries to multiple muscle
groups in the right lower leg. Therefore, the Board finds
that the residuals of a shell fragment wound to the right leg
is more appropriately evaluated under the diagnostic code for
Muscle Group XI.
The veteran is already rated as 30 percent disabling for
residuals of a shell fragment wound to the right leg. No
higher schedular rating is provided for an injury to Muscle
Group XI or, for that matter, Muscle Group XII. 38 C.F.R. §
4.73. Therefore, the Board cannot award a schedular
disability evaluation greater than 30 percent for residuals
of a shell fragment wound to the right leg. The Board does
not doubt the sincerity of the veteran’s belief that the
residuals should be evaluated as more than 30 percent
disabling. The schedular percentages, however, by regulation
represent average impairment of earning capacity.
Moreover, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The residuals of a shell fragment wound to the
right thigh have not resulted in frequent hospitalizations,
but have interfered with his employment. Nevertheless, the
interference in employment is not beyond the average
impairment of earning capacity contemplated by the 30 percent
rating currently assigned.
VI. Factual and Legal Background on the Issues of Increased
Ratings for Mixed Polyneuropathy of the Left Foot and the
Right Foot
On February 1997 VA feet examination, the veteran reported
that he had numbness in both feet and that he had
intermittent pain in both feet. There was no swelling or
deformity of the feet or ankles. The peripheral pulses were
normal. The veteran walked with a shuffling gait and used a
cane. The examiner noted that walking was somewhat impaired
due to the numbness in his feet. There were no secondary
skin or vascular changes. X-rays of the feet revealed that
shrapnel was still present. The diagnosis was pain and
numbness in both feet that was secondary to the shrapnel
wounds of the lower legs.
In an April 1997 rating decision, service connection was
granted for bilateral foot pain and a 10 percent disability
rating was assigned under Diagnostic Code 5279 (anterior
metatarsalgia).
On VA feet examination performed on September 5, 1997, there
was a stocking distribution peripheral neuropathy with a
decreased sensation affecting all modalities. Deep tendon
reflexes were absent in both upper and lower extremities.
The veteran had a limping gait and impaired movements because
of weakness and decreased sensation. He was not able to
perform squatting, supination, pronation, or rising on toes
and heels. An electromyogram revealed a mixed axonal and
demyelinating peripheral neuropathy. The diagnosis was a
mixed polyneuropathy in a stocking distribution that affected
both feet. The examiner opined that the condition caused a
moderate to severe disability with an inability to ambulate
normally. The examiner noted that, although the exact
etiology of the peripheral neuropathy was uncertain, it was
conceivable that the veteran’s injuries might have
contributed to the peripheral neuropathy.
On VA general medical examination performed on September 5,
1997, peripheral neuropathy was diagnosed.
At the September 1997 hearing, the veteran testified that he
stumbled a lot because of loss of feeling in both feet. T.
at 6-7.
In a January 1998 rating decision, separate 20 percent
disability ratings were assigned under Diagnostic Code 8522
for mixed polyneuropathy of the left foot and the right foot,
both effective September 5, 1997.
When an unlisted condition is encountered, it can be rated
under a closely related disease or injury in which not only
the functions affected, but also the anatomical localization
and symptomatology are closely analogous. 38 C.F.R. § 4.20
(1998).
A 10 percent disability rating is warranted for unilateral or
bilateral anterior metatarsalgia (Morton’s disease).
38 C.F.R. § 4.71a, Diagnostic Code 5279 (1998).
Moderate, moderately severe, and severe foot injuries warrant
10, 20, and 30 percent disability ratings, respectively.
38 C.F.R. § 4.71a, Diagnostic Code 5284 (1998).
For diseases of the peripheral nerves, the term “incomplete
paralysis” indicates a degree of lost or impaired function
substantially less than the type picture for complete
paralysis. When the involvement is wholly sensory, the
rating should be for the mild or, at most, the moderate
degree. The ratings for the peripheral nerves are for
unilateral involvement. Combined nerve injuries should be
rated by reference to the major involvement, or if sufficient
in extent, radicular group ratings should be considered.
38 C.F.R. § 4.124a (1998).
10 and 20 percent disability ratings are warranted for
moderate and severe paralysis of the musculocutaneous
(superficial peroneal) nerve, respectively. A 30 percent
rating requires complete paralysis of the musculocutaneous
nerve, which is manifested by weakened eversion of the foot.
38 C.F.R. § 4.124a, Diagnostic Code 8522 (1998).
Disabilities arising from a single disease entity are to be
rated separately as are all other disabling conditions.
38 C.F.R. § 4.25 (1998). Nonetheless, the evaluation of the
same disability under various diagnoses is to be avoided.
38 C.F.R. § 4.14 (1998). The Court has held that separate
evaluations for different disorders resulting from the same
injury may sometimes be merited. The critical element in
this determination is that none of the symptomatology for
either of the disorders is duplicative or overlapping with
the symptomatology of the other. Esteban v. Brown, 6 Vet.
App. 259, 262 (1994).
VII. Analysis of Entitlement to an Evaluation in Excess of
10 Percent
prior to September 5, 1997,
for Mixed Polyneuropathy of the Left Foot and the Right Foot
In this case, the Board finds that separate evaluations for
the mixed polyneuropathy of the left foot and the right foot
are warranted. The veteran has two separate disabilities:
polyneuropathy in the left foot and polyneuropathy in the
right foot. His two disabilities have the same manifestation
but there is no duplicating or overlapping of symptomatology
because each disability is limited in its symptomatology to
its respective extremity. In addition, as previously noted,
ratings for the peripheral nerves are for unilateral
involvement. See 38 C.F.R. § 4.124a (1998).
For the mixed polyneuropathy of the left foot prior to
September 5, 1997, a 20 percent disability rating under
Diagnostic Code 8522 is warranted. On February 1997 VA feet
examination, pain and numbness in the left foot was noted.
On September 1997 VA feet examination, mixed polyneuropathy
of the left foot was diagnosed. In a January 1998 rating
decision, a 20 percent disability rating was assigned for
mixed polyneuropathy of the left foot, effective September 5,
1997, the date of the VA examination. Based on the findings
in the two VA examinations, the preponderance of the evidence
is not against a finding that, prior to September 5, 1997,
the veteran had a severe incomplete paralysis of the
musculocutaneous nerve in the left lower extremity.
Nonetheless, a higher rating for the neuropathy in the left
foot prior to September 5, 1997, is not warranted because
there was no persuasive evidence that the veteran had a
complete paralysis of the left musculocutaneous nerve prior
to September 5, 1997. In particular, no VA examiner
indicated that there was a complete paralysis of the left
musculocutaneous nerve prior to September 5, 1997. Instead,
it was noted on February 1997 VA examination that walking was
somewhat impaired.
Moreover, a higher disability rating under Diagnostic Code
5284 for the left foot disorder prior to September 5, 1997,
is not warranted. Although the veteran used a cane and had a
shuffling gait on February 1997 VA examination, there was no
swelling or deformity in the left foot on that examination.
Also, there were no secondary skin or vascular changes. In
other words, there is no persuasive evidence that, overall,
the veteran had a severe left foot impairment prior to
September 5, 1997.
Furthermore, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The mixed polyneuropathy of the left foot prior to
September 5, 1997 had not resulted in frequent
hospitalizations, but had interfered with his employment.
Nevertheless, the interference in employment was not beyond
the average impairment of earning capacity contemplated by
the 20 percent rating now warranted.
For the mixed polyneuropathy of the right foot prior to
September 5, 1997, a 20 percent disability rating under
Diagnostic Code 8522 is warranted. As previously noted, in a
January 1998 rating decision, a 20 percent disability rating
was assigned for mixed polyneuropathy of the right foot,
effective September 5, 1997, the date of the VA examination.
Based on the findings in the two VA examinations, the
preponderance of the evidence is not against a finding that,
prior to September 5, 1997, the veteran had a severe
incomplete paralysis of the musculocutaneous nerve in the
right lower extremity. Nevertheless, a higher rating for the
neuropathy in the right foot prior to September 5, 1997, is
not warranted because there was no persuasive evidence that
the veteran had a complete paralysis of the right
musculocutaneous nerve prior to September 5, 1997.
Specifically, no VA examiner indicated that there was a
complete paralysis of the right musculocutaneous nerve prior
to September 5, 1997.
In addition, a higher disability rating under Diagnostic Code
5284 for the right foot disorder prior to September 5, 1997,
is not warranted. Although the veteran used a cane and had a
shuffling gait on February 1997 VA examination, there was no
swelling or deformity in the right foot on that examination.
Also, there were no secondary skin or vascular changes. In
other words, there is no persuasive evidence that, overall,
the veteran had a severe right foot impairment prior to
September 5, 1997.
Moreover, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The mixed polyneuropathy of the right foot prior
to September 5, 1997 had not resulted in frequent
hospitalizations, but had interfered with his employment.
Nevertheless, the interference in employment was not beyond
the average impairment of earning capacity contemplated by
the 20 percent rating now warranted.
VIII. Analysis of Entitlement to an Evaluation in Excess of
20 Percent
from September 5, 1997, for Mixed Polyneuropathy of the Left
Foot
For this claim, there is no persuasive evidence that the
veteran has a complete paralysis of the left musculocutaneous
nerve. Although the veteran has an inability to perform
pronation of the left foot, the September 1997 examiner did
not indicate that there was a complete paralysis of the left
musculocutaneous nerve. In fact, the examiner noted that it
was only a moderate to severe disability.
Moreover, a higher disability rating under Diagnostic Code
5284 for the left foot disorder from September 5, 1997, is
not warranted. Although the September 1997 VA foot examiner
opined that there was a moderate to severe disability, the
veteran is still able to ambulate, albeit with a limp. Also,
there are no secondary skin or vascular changes. In other
words, there is no persuasive evidence that, overall, the
veteran has a severe left foot impairment.
Furthermore, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The mixed polyneuropathy of the left foot from
September 5, 1997 has not resulted in frequent
hospitalizations, but has interfered with his employment.
Nevertheless, the interference in employment is not beyond
the average impairment of earning capacity contemplated by
the 20 percent rating currently assigned.
IX. Analysis of Entitlement to an Evaluation in Excess of 20
Percent
from September 5, 1997, for Mixed Polyneuropathy of the Right
Foot
For this claim, there is no persuasive evidence that the
veteran has a complete paralysis of the right
musculocutaneous nerve. Although the veteran has an
inability to perform pronation of the right foot, the
September 1997 examiner did not indicate that there was a
complete paralysis of the right musculocutaneous nerve. In
fact, the examiner noted that it was only a moderate to
severe disability.
Moreover, a higher disability rating under Diagnostic Code
5284 for the right foot disorder from September 5, 1997, is
not warranted. Although the September 1997 VA foot examiner
opined that there was a moderate to severe disability, the
veteran is still able to ambulate, albeit with a limp. Also,
there are no secondary skin or vascular changes. In other
words, there is no persuasive evidence that, overall, the
veteran has a severe right foot impairment.
Moreover, the RO considered whether the veteran’s claim
should be referred to the appropriate official for
consideration of an extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1) and declined to refer the claim to that
official. The mixed polyneuropathy of the right foot from
September 5, 1997 has not resulted in frequent
hospitalizations, but has interfered with his employment.
Nevertheless, the interference in employment is not beyond
the average impairment of earning capacity contemplated by
the 20 percent rating currently assigned.
X. Entitlement to Service Connection for Post-Traumatic
Stress Disorder
Service medical records revealed that in April 1970 a
situational reaction was diagnosed. On separation
examination, the psychiatric evaluation was normal.
On February 1997 VA mental disorders examination, major
depression was diagnosed.
On February 1997 VA PTSD examination, the veteran reported
that he had a restless sleep pattern and that he had a
recurring dream about some orphan children in Vietnam. He
indicated that he had some survivor guilt about Vietnam and
that he did not have an active social life. The examiner
noted that the veteran’s symptoms were suggestive of PTSD,
particularly the recurring dreams about the faces of
Vietnamese orphan children. Nonetheless, the veteran did not
provide a full history of the symptoms that would meet the
criteria for a diagnosis of PTSD. The Axis I diagnoses were
the following: major depression, history of alcohol abuse,
dysthymia, anxiety, and rule out an evolving PTSD. The
examiner indicated that at the present time the veteran did
not have all of the complex symptoms to meet the criteria for
this diagnosis and that the veteran’s main problem was his
major depression. Under Axis III (general medical
conditions), it was noted that the veteran had stress from
being in the combat zone in Vietnam and from being ambushed.
Under Axis IV (psychosocial and environmental problems), it
was noted that the veteran had some recollections of his
Vietnam experience, but there have not been intrusive or
incapacitating.
At the September 1997 hearing, the veteran testified that he
had recurring dreams about children in the Republic of
Vietnam. T. at 15-16.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or for aggravation in the line of duty
of a preexisting injury or disease. 38 U.S.C.A. § 1110 (West
1991). Regulations also provide that service connection may
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1998).
Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that a claimed inservice stressor
actually occurred, and a link, established by medical
evidence, between current symptomatology and a claimed
inservice stressor. 38 C.F.R. § 3.304(f) (1998).
In order for a claim to be well grounded, there must be
competent evidence of the following: a current disability (a
medical diagnosis), an incurrence or aggravation of a disease
or injury in service (lay or medical evidence), and a nexus
between the inservice injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
Specifically, one element of a well-grounded claim is a
presently existing disability, stemming from the disease or
injury that allegedly began in or was aggravated by service.
Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141 (1992).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993).
In this case, there is not a clear diagnosis of PTSD. True,
the veteran’s symptoms were suggestive of PTSD. Nonetheless,
the examiner indicated that at the present time the veteran
did not have all of the complex symptoms to meet the criteria
for this diagnosis. In other words, PTSD was not diagnosed.
See Caluza v. Brown, 7 Vet. App. at 506. Therefore, the
claim for entitlement to service connection for PTSD is not
well grounded.
The Board also notes that there is no duty to assist the
claimant under 38 U.S.C.A. § 5107 in developing the facts
underlying his or her claim in the absence of a well-grounded
claim. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
XI. Factual Background on the Issues of Entitlement to
Service Connection
for a Right Hip, Back, and Left Shoulder Disorders
Service medical records reveal that there were no complaints
or treatment of a right hip, left shoulder or back disorder.
On separation examination, the spine and upper extremities
were normal.
On February 1997 VA bones examination, the diagnosis was no
history of a fracture of any bones.
On February 1997 VA hips examination, it was noted that the
veteran had some mild limitation of motion in the hips. The
range of motion in the right hip was the following: flexion
to 70 degrees, adduction to 30 degrees, and abduction to 60
degrees. There was some limitation of motion on rotation,
with pain. X-rays revealed mild degenerative changes. The
examiner opined that there was no relationship between any
hip disease found and the shrapnel wounds. Mild degenerative
arthritis was diagnosed.
On February 1997 VA spine examination, the veteran reported
that he had injured his lower back in the early 1980’s and
that he had some pain in the lumbar spine. There were some
postural abnormalities. Some muscle spasm was present. The
range of motion of the lumbar spine was the following:
forward flexion to 80 degrees; backward extension to 15
degrees; lateral flexion to 35 degrees, bilaterally; and
rotation to 70 degrees, bilaterally. The veteran did not
perform a heel and toe walk because he reported that it would
be too painful. Some pain in the hips was elicited on
straight leg raising at 45 degrees. The examiner opined that
there was no relationship between the shell fragment wounds
and the pathology in the lumbar spine. Remote lumbosacral
strain and degenerative arthritis were diagnosed.
At the September 1997 hearing, the veteran’s spouse testified
that a VA doctor said that it was reasonable to assume that
the veteran’s legs were putting pressure on his hips. T. at
9. The veteran testified that he had pain in his lower back.
Id. at 13.
On September 1997 VA general medical examination, the veteran
complained of left hip pain. His gait was painful, with
limping of the left leg. Left hip pain was diagnosed. The
examiner opined that the left hip disorder was related to the
weakness and pain in the lower extremities, which affected
the left lower extremity more than the right lower extremity
and led to overuse of the left hip joint. A left shoulder
disorder was not diagnosed.
XII. Analysis of Entitlement to Service Connection for a
Right Hip Disorder
Service connection may be granted for a disability that is
proximately due to or is the result of a service-connected
disease or injury. See 38 C.F.R. § 3.310(a). In order to
show that a disability is proximately due to or the result of
a service-connected disease or injury, the veteran must
submit competent medical evidence showing that the
disabilities are causally-related. Jones v. Brown, 7 Vet.
App. 134, 137 (1994). The Court has held that where
aggravation of a veteran’s nonservice-connected condition is
proximately due to or the result of a service-connected
condition, the veteran shall be compensated for the degree of
disability over and above the degree of disability existing
prior to the aggravation. Allen v. Brown, 7 Vet. App. 439
(1995).
The Court has held that a lay party is not competent to
provide probative evidence as to matters requiring expertise
derived from specialized medical knowledge, skill, expertise,
training, or education. Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992). An appellant’s statement about what
a doctor told the lay claimant does not constitute competent
medical evidence under Grottveit of purposes of rendering a
claim well grounded. Robinette v. Brown, 8 Vet. App. 69, 77
(1995).
Moreover, medical opinions that are speculative do not render
a claim well grounded. See Obert v. Brown, 5 Vet. App. 30,
33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
With regard to this claim, there is no medical evidence which
establishes that a right hip disorder was caused or
aggravated by the veteran’s service-connected residuals of
various shell fragment wounds. True, the veteran has a right
hip disorder. Nevertheless, the February 1997 examiner
opined that there was no relationship between any hip disease
found and the shrapnel wounds. The veteran’s spouse’s
testimony that a doctor said that it was reasonable to assume
that the veteran’s legs were putting pressure on his hips is
not competent evidence. See Robinette, 8 Vet. App. at 77.
In fact, the opinion that the veteran’s spouse testified
about is, at best, ambiguous; thus, there is no further duty
to assist under 38 U.S.C.A. § 5103 (1991). See Id; Obert, 5
Vet. App. at 33. In short, there is no competent evidence to
establish a relationship between a right hip disorder and his
service-connected residuals of various shell fragment wounds.
See Jones, 7 Vet. App. at 137. Therefore, the claim for
entitlement to service connection for a right hip disorder is
not well grounded.
XIII. Analysis of Entitlement to Service Connection for a
Back Disorder
With regard to this claim, there is no medical evidence which
establishes that a back disorder was caused or aggravated by
the veteran’s service-connected residuals of various shell
fragment wounds. True, the veteran has a low back disorder.
Nevertheless, the February 1997 examiner opined that there
was no relationship between the shell fragment wounds and the
pathology in the lumbar spine. With regard to the veteran’s
assertion that his low back disorder is related to the
various shell fragment wounds, that contention is not
competent evidence. See Espiritu, 2 Vet. App. at 494-95. In
short, there is no competent evidence to establish a
relationship between a back disorder and his service-
connected residuals of various shell fragment wounds. See
Jones, 7 Vet. App. at 137. Therefore, the claim for
entitlement to service connection for a back disorder is not
well grounded.
XIV. Analysis of Entitlement to Service Connection
for a Left Shoulder Disorder
For this claim, there is no competent evidence that the
veteran has a left shoulder disorder. On September 1997 VA
general medical examination, a left shoulder disorder was not
diagnosed. With regard to the veteran’s intimation that he
has a left shoulder disorder as a result of using a cane for
his service-connected disabilities, that assertion is not
competent evidence. Espiritu, 2 Vet. App. at 494-95. In
other words, there is no evidence of a current disability.
See Brammer, 3 Vet. App. at 225; Rabideau, 2 Vet. App. at
144. Therefore, the claim of service connection for a left
shoulder disorder is not well grounded.
ORDER
An increased rating for residuals of a shell fragment wound
to the left leg involving Muscle Group XI is denied.
An increased rating for residuals of a shell fragment wound
to the left thigh involving Muscle Group XIII is denied.
An increased rating for residuals of a shell fragment wound
to the right leg is denied.
A 20 percent evaluation prior to September 5, 1997, for mixed
polyneuropathy of the left foot is granted, subject to the
laws and regulations governing the payment of monetary
benefits.
A 20 percent evaluation prior to September 5, 1997, for mixed
polyneuropathy of the right foot is granted, subject to the
laws and regulations governing the payment of monetary
benefits.
An increased rating from September 5, 1997, for mixed
polyneuropathy of the left foot is denied.
An increased rating from September 5, 1997, for mixed
polyneuropathy of the right foot is denied.
Service connection for post-traumatic stress disorder is
denied.
Service connection for a right hip disorder is denied.
Service connection for a back disorder is denied.
Service connection for a left shoulder disorder is denied.
REMAND
On February 1997 VA muscles examination, it was noted that
the numerous shell fragment wounds, including the one in the
right arm, were considerably symptomatic. Nonetheless, the
symptoms involving the right arm were not adequately
described, and the September 1997 VA muscles examination did
not include an evaluation of the residuals of the shell
fragment wound to the right arm.
In light of the above, it is the opinion of the Board that a
contemporaneous and thorough VA examination would assist the
Board in clarifying the nature of the veteran’s disability
and would be instructive with regard to the appropriate
disposition of the issue submitted for appellate
consideration. Littke v. Derwinski, 1 Vet. App. 90 (1990).
According, this case is REMANDED for the following:
1. The RO should contact the veteran and
ask that he provide the names and
addresses of all health care providers
who afforded him treatment after December
1996 for the residuals of a shell
fragment wound to the right arm. After
obtaining the necessary permission from
the veteran, the RO should obtain copies
of all treatment records and associate
them with the claims folder.
2. After copies of all available
treatment records have been associated
with the claims file to the extent
possible, the veteran should be afforded
a VA examination by an appropriate
specialist in order to determine the
extent and degree of severity of his
service-connected residuals of a shell
fragment wound to the right arm. The
claims folder and a copy of this remand
must be made available to the examiner
for review in conjunction with the
examination. All indicated tests and
studies should be performed. All
findings and diagnoses should be reported
in detail. The examiner should describe
all manifestations of the residuals of
the shell fragment wound in the right
arm. Ranges of motion, including flexion
of the elbow, supination, pronation,
dorsiflexion, palmar flexion, and range
of motion of the fingers, should be
reported in degrees. The examiner should
identify the muscle group(s) involved and
the extent of the damage to the muscle
group(s). To the extent possible, damage
to the muscle group(s) should be
characterized as slight, moderate,
moderately severe, or severe. The
results of tests of strength and
endurance of the muscle group(s) involved
should be described. The examiner should
comment upon the extent, if any, to which
pain, supported by adequate pathology and
evidenced by the visible behavior of the
veteran undertaking motion, results in
functional loss of the right upper
extremity. The examiner should express
an opinion regarding whether the
residuals of the shell fragment wound in
the right arm cause weakened movement,
excess fatigability, or incoordination,
and, if so, the extent. The rationale
for any opinion should be stated in full.
3. The RO should review the examination
report to ensure that it is in full
compliance with this remand, including
all of the requested findings and
opinions. If not, the report should be
returned to the examiner for corrective
action.
4. After the above development has been
completed to the extent possible, the RO
should again review the claim.
If the benefit sought remains denied, the veteran and his
representative should be given a supplemental statement of
the case with regard to the additional development and should
also be afforded an opportunity to respond. Thereafter, the
case should be returned to the Board, if in order.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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